In the

United States Court of Appeals

For the Seventh Circuit

Nos. 01-3066 & 01-3157

Patrick Wright,

Petitioner-Appellee/

Cross-Appellant,

v.

Jonathan Walls,

Respondent-Appellant/

Cross-Appellee.

Appeals from the United States District Court

for the Central District of Illinois.

No. 93 C 2105--Harold A. Baker, Judge.

Argued February 26, 2002--Decided April 24, 2002

 Before Flaum, Chief Judge, and Easterbrook

and Williams, Circuit Judges.

 Flaum, Chief Judge. A jury convicted

Patrick Wright of murder, attempted

murder, attempted rape, armed robbery,

home invasion and residential burglary.

The trial court sentenced him to death.

Following the exhaustion of all state

remedies, Wright petitioned for a writ of

habeas corpus alleging numerous

constitutional errors at both the trial

and sentencing phases. The district court

vacated Wright’s death sentence because

the sentencing judge impermissibly failed

to consider mitigating evidence related

to Wright’s traumatic childhood. The

district court also affirmed Wright’s

conviction, holding that Wright did not

receive ineffective assistance of counsel

at trial./1 Both Wright and the State

of Illinois appeal. For the reasons

stated herein, we affirm.

I. Background

 On June 6, 1983, Wright entered Carol

Specht’s apartment, put a knife to her

throat and attempted to rape her. After

binding and gagging Carol, Wright

proceeded through the rest of the

Spechts’ home when he discovered Carol’s

daughter, Connie. Wright forced Connie
into her mother’s bedroom where he

sexually abused her. Wright later slashed

Connie’s throat multiple times and

stabbed Carol in the back. Connie

survived, but Carol died./2 Wright was

charged with murder, attempted murder,

attempted rape, armed robbery, home

invasion and residential burglary.

 At trial, Wright’s counsel did not

contest the fact that Wright committed

the crimes charged. Instead, trial

counsel argued that Wright suffered from

a mental disease involving a fetish for

women’s shoes. The sole evidence offered

at trial supporting this theory was

Wright’s testimony that he had a women’s

shoe fetish, that he suffered from the

fetish since the age of seven, that his

adoptive mother beat him because of his

mental impairment, and that he had been

institutionalized in various mental

hospitals since the age of 13. Wright

also testified, contrary to his

tapedconfession, that he had entered the

Spechts’ apartment seeking women’s shoes

for sexual gratification. Dr. William

Fowler testified for the State in

rebuttal. He stated that Wright did not

suffer from a mental disease at the time

of the offense, but rather suffered from

a non-pathological psychosexual disorder.

The trial court provided the jury with

general verdict forms, including verdicts

of not guilty, not guilty by reason of

insanity, guilty but mentally ill

("GBMI"), and guilty for each of the

offenses. The jury found Wright guilty of

all the crimes charged.

 Wright waived a sentencing jury. At the

sentencing hearing, Wright offered the

testimony of Dr. Arthur Traugott, who

opined that although Wright was able to

appreciate the wrongfulness of his acts,

Wright’s shoe fetish controlled his

lifestyle and was the cause of prior

incarceration and institutionalization.

The sentencing judge ultimately imposed

the death penalty. Before doing so,

however, the sentencing judge commented

extensively on the factors that he would-

- and would not--consider in determining

an appropriate sentence. Initially, the

court focused on Wright’s traumatic

childhood, stating:

I don’t think any reasonable person who

has heard all of the evidence in this

case can feel anything but sympathy for
the pathetic creature, Patrick Wright,

who has been paraded through the

courtroom in the trial of this case. He

is a man who has wandered the forty

wretched years of his life from

institution to institution, from prison

to prison; the evidence indicating that

his fetish for women’s shoes being

perhaps the one and only purpose for his

life.

After acknowledging Wright’s "pathetic"

history, the sentencing judge made three

statements giving rise to the current

appeal. First, the sentencing judge noted

that "sympathy for the defendant [was]

not an appropriate consideration" in

determining Wright’s sentence. Second,

the judge listed all of the factors that

he would exclude from the death penalty

calculus:

To repeat in part, any matters dealing

with sympathy, outrage, who the victim

was, all the matters that I just

mentioned have no bearing on whether the

defendant shall receive the death

penalty. And again, I note for the record

that I have cited them so the record is

clear that I have rejected them, and I

have disregarded them in making my

decision.

Third, in weighing the mitigating and

aggravating circumstances according to

Illinois law, the sentencing judge stated

that he was unable to "determine the

existence of any mitigating factors

within or without the statute with the

exception of [extreme mental emotional

disturbance at the time of the crime.]"

 Wright appealed his conviction and

sentence directly to the Illinois Supreme

Court. In his appeal, Wright raised eight

separate issues, only one of which is

relevant to this appeal. Wright argued

that in imposing the death sentence, the

sentencing court failed to consider all

of the mitigating evidence presented by

Wright, including evidence related to his

troubled youth. The Illinois Supreme

Court affirmed Wright’s death sentence.

The Court first acknowledged that lower

courts must consider "any mitigating

facts in the record of the trial as well

as any which the defendant offers at the

sentencing hearing." People v. Wright,

490 N.E.2d 640, 656 (Ill. 1985) ("Wright

I") (citing People v. Lewis, 88 Ill. 2d
129, 144 (1981)). However, the Illinois

Supreme Court ruled that the sentencer

took account of all of the mitigating

evidence because (1) the State

specifically requested the court to

consider all of the evidence presented

during trial, and (2) the sentencing

judge’s comments that he found one

mitigating factor--extreme emotional

disturbance at the time of the crime--

indicated that he considered "the

defendant’s troubled youth and its

contribution, if any, to the mental

disturbance existing at the time the

crime was committed." Id. at 656.

 Following the exhaustion of all appeals

and applications for post-conviction

relief in state court,/3 Wright

petitioned for a writ of habeas corpus

based upon numerous arguments. The

current appeal deals with two of them.

Wright first claimed that the sentencer’s

comments during sentencing conveyed a

misapprehension of the law that precluded

him from considering evidence of Wright’s

traumatic childhood in mitigation. Wright

also asserted that trial counsel was

ineffective for failing to argue,

investigate and introduce during the

liability phase evidence of Wright’s men

tal health problems. Although counsel had

investigated Wright’s mental health

history, Wright relied on approximately

50 pages of additional medical records

obtained after trial that indicated

limited intelligence, psychiatric drug

use, and severe physical abuse by both

his natural and adoptive parents.

 The district court granted the writ with

respect to Wright’s death sentence,

holding that the trial judge’s failure to

consider as mitigation Wright’s traumatic

childhood and mental health problems

violated Eddings v. Oklahoma, 455 U.S.

104 (1982). The district court reasoned:

[T]he judge specifically stated that he

could discern no mitigating factors

except for [Wright’s] extreme emotional

disturbance at the time he committed the

offense. But [Wright] presented evidence

of a horrible childhood; surely that

qualifies as mitigation. If the judge

considered this evidence, as he was

required to do, why would he say that no

mitigating factors existed besides

[Wright’s] emotional disturbance at the

time of the crime? Simply put, he would
not. He might find the mitigation of

little weight, but he would not say that

it did not exist. To derive any other

meaning from his plain words requires

tortuous reasoning.

Wright v. Cowan, 149 F. Supp. 2d 523,

537-38 (C.D. Ill. 2001).

 The district court denied relief for

Wright’s ineffective assistance of

counsel claim. Initially, the district

court ruled that Wright had procedurally

defaulted certain aspects of the claim

for failing to raise it before the

Illinois State courts. Specifically, the

court noted that in his first petition

for post-conviction relief, Wright did

not argue that counsel was ineffective

for focusing on Wright’s alleged

insanity, as opposed to pursuing a GBMI

verdict. Because the Illinois Supreme

Court held that Wright had waived the

issue, and because that was an adequate

and independent state ground, the

district court limited its

ineffectiveness inquiry to the issue of

omitted evidence and did not address the

wisdom of trial counsel’s strategy to

pursue exclusively an insanity defense.

With these parameters in place, the

district court held that although trial

counsel was not perfect, Wright could not

satisfy the rigorous standards of Strick

land v. Washington, 466 U.S. 668 (1984).

Wright, 149 F. Supp. 2d at 532-34. Both

parties appeal.

II. Discussion

 We note that the Antiterrorism and

Effective Death Penalty Act ("AEDPA")

does not apply in the present case

because Wright filed his petition for a

writ of habeas corpus prior to the

AEDPA’s effective date. See Lindh v. Mur

phy, 521 U.S. 320, 336 (1997); Everett v.

Barnett, 162 F.3d 498, 500 (7th Cir.

1998). Accordingly, we apply pre-AEDPA

standards to this appeal: we presume

correct the state court’s determination

of historical factual issues, see Porter

v. Gramley, 112 F.3d 1308, 1316 (7th Cir.

1997), and we review de novo questions of

law or mixed questions of law and fact

considered by state courts. Shasteen v.

Saver, 252 F.3d 929, 933 (7th Cir. 2001).

 A. Vacation of Death Sentence
 The first issue we must address is

whether the district court properly

vacated Wright’s death sentence because

the sentencing judge impermissibly

refused to consider proposed mitigating

evidence related to Wright’s background.

Wright argues that this ruling was

correct because the sentencing court’s

comments unambiguously reveal that he

could discern no mitigating factor beyond

Wright’s extreme emotional disturbance at

the time of the crime. According to

Wright, this necessarily means that the

sentencing judge did not consider

Wright’s traumatic history. In response,

the State maintains that although the

judge had to entertain Wright’s traumatic

background, he was not required to grant

that evidence any amount of weight. The

State interprets the sentencing court’s

remarks as considering but rejecting

Wright’s mitigating evidence.

 Both parties agree that Eddings v.

Oklahoma, 455 U.S. 104 (1982), and its

progeny provide the governing legal

principles in this case. In Eddings, the

Supreme Court held that because

imposition of a death sentence

demandsindividualized consideration of

each defendant’s circumstances, the

sentencing court must admit and consider

all relevant mitigating evidence. Id. at

114-15 ("Just as the State may not by

statute preclude the sentencer from

considering any mitigating factor,

neither may the sentencer refuse to

consider, as a matter of law, any

relevant mitigating evidence.") (emphasis

in original); Lockett v. Ohio, 438 U.S.

586, 604 (1982) ("[W]e conclude that the

Eighth and Fourteenth Amendments require

that the sentencer . . . not be precluded

from considering, as a mitigating factor,

any aspect of a defendant’s character or

record and any of the circumstances of

the offense that the defendant proffers

as a basis for a sentence less than

death.") (emphasis in original).

 Because the Illinois Supreme Court

considered Wright’s Eddings argument on

direct appeal, we must examine the State

Court’s disposition of the issue. The

Illinois Supreme Court held that the

sentencing court necessarily considered

Wright’s history because the State

specifically asked the judge to take into

account all of the evidence presented
during the liability phase. Wright I, 490

N.E.2d at 656. The Illinois Supreme Court

also held that the sentencer’s finding of

one mitigating factor (extreme emotional

disturbance at the time of the crime)

"indicate[d] that the court did consider

the defendant’s troubled youth and its

contribution, if any, to the mental

disturbance existing at the time that the

crime was committed." Id. In our view,

the Supreme Court of Illinois’ holding

that the sentencing court "considered all

potential mitigating facts in the record,

including those adduced at trial," id.,

as well as the Court’s proffered

justifications for that holding, do not

withstand scrutiny. Foremost, the

Illinois Supreme Court never addressed

the truly critical statements in this

case, i.e., those where the sentencing

judge set forth the specific evidence

that he would not consider in determining

Wright’s sentence. The fact that the

State requested the sentencer to take

into account all of the evidence

presented at trial is immaterial when

coupled with the specific evidence the

sentencing court stated he would

disregard. Had the sentencing court

agreed to take into account all of the

evidence at trial --and said nothing

else--he may have complied with Eddings.

See, e.g., United States v. Mahoney, 859

F.2d 47, 49-50 (7th Cir. 1988)

(sentencing judge need not explicitly

state every fact he is relying on to pass

sentence). But this is not a case where

the sentencer simply neglected to state

for the record all of the evidence

considered in mitigation./4 Rather, this

is a case where the sentencer highlighted

all of the evidence he would not

consider--including evidence of Wright’s

traumatic history--a practice that

Eddings clearly prohibits, and an issue

not addressed by the Illinois Supreme

Court.

 The sentencing judge was quite clear in

what he deemed appropriate factors for

consideration in determining Wright’s

sentence, stating that:

any matters dealing with sympathy,

outrage, who the victim was, all the

matters that I just mentioned [such as

evidence of Petitioner’s "wretched" and

"pathetic" life] have no bearing on

whether the defendant shall receive the

death penalty. And again, I note for the
record that I have cited them so the

record is clear that I have rejected

them, and I have disregarded them in

making my decision.

People v. Wright, No. 83-CF-70, Tr. of

Sent. Hrg., at 7 (emphasis added). This

is the language of exclusion--the very

practice that the Supreme Court held

constitutionally infirm in Eddings.

Indeed, the sentencing judge’s remarks in

this case are strikingly similar to those

in Eddings, where the judge stated that

he could not "be persuaded entirely by

the fact . . . that the youth was sixteen

years old when this heinous crime was

committed. Nor can the Court in following

the law, in my opinion, consider the fact

of this young man’s violent background."

Eddings, 455 U.S. at 124 (Burger, C.J.,

dissenting). In both cases, the

sentencing judges’ statements reflect the

wholesale exclusion of certain evidence

in determining the appropriate sentence.

Eddings makes clear that this practice is

improper because it deprives the criminal

defendant of the particularized

assessment necessary in capital

sentencing hearings.

 The sentencing judge’s additional

comments, particularly the court’s

ultimate conclusion that only one

mitigating factor existed, foreclose

distinct interpretations. The sentencing

judge stated that he had "given great

consideration to whether other mitigating

factors exist," and that he was "unable

to determine the existence of any

mitigating factors within or without the

statute with the exception [of

defendant’s extreme mental distress at

the time of the offense.]" As the

district court noted, Wright presented

substantial evidence of a troubled

childhood, which clearly qualifies as

evidence offered by the defendant in

mitigation./5 Although the sentencing

judge was not required to afford Wright’s

history any weight, he was required to

consider it. To suggest that the finding

of extreme mental and emotional

disturbance at the time of the crime

necessarily encompassed the evidence of

Wright’s pitiful life renders the words

"at the time of the crime" meaningless.

See Wright, 149 F. Supp. 2d at 537. The

fact that the sentencer found only one

mitigating factor either "within or

without the statute" requires the
opposite conclusion than the one reached

by the Illinois Supreme Court. To find

from these statements that the sentencing

judge actually considered Wright’s

history requires "tortuous reasoning."

Id. at 538.

 In dissent, Judge Easterbrook quarrels

with this analysis and argues that the

sentencing judge’s remarks illustrate

that he considered--but afforded no

weight to--Wright’s mitigating evidence,

including evidence describing his

troubled background. However, this

approach suffers from an unavoidable

inconsistency. As discussed previously,

the sentencing judge linked evidence

related to Wright’s history with other

evidence he would not consider, such as

sympathy, outrage, who the victim was

(including her activities within the

community and the recognition that she

received for those activities), and

certain statements Wright made to the

media. If Judge Easterbrook’s formulation

of the sentencing judge’s statements is

correct, then the sentencing judge also

considered but rejected sympathy,

outrage, who the victim was, and

statements made to the media, a practice

that would have been improper. See, e.g.,

People v. Bernette, 197 N.E.2d 436, 443

(Ill. 1964) (evidence regarding the

victim or her family improper because it

bears no relationship to guilt or

innocence or the appropriate punishment);

People v. Holman, 469 N.E.2d 119, 135

(Ill. 1984) (improper to describe the

victim as "unusually bright" or to state

that the victim had received numerous

awards); People v. Del Vecchio, 475

N.E.2d 840 (Ill. 1985) (jury instruction

precluding consideration of sympathy or

prejudice was proper). Thus, either the

sentencer disregarded all of the

categories of evidence mentioned, which

would violate Eddings, or he considered

but rejected all of the evidence, a

course of action raising other concerns.

 Perhaps recognizing this inconsistency,

the state interprets the sentencer’s

remarks as excluding only sympathy for

the defendant, a practice that the

Constitution permits. See California v.

Brown, 479 U.S. 538 (1987). While it is

true that the individualized assessment

regarding the appropriateness of a death

sentence should not be based on an

emotional response to the mitigating

evidence, the sentencer must exercise
great caution not to ignore the evidence

giving rise to such responses. See id. at

545-46 (O’Connor, J., concurring). Here,

the sentencing judge used language such

as "will have no bearing" and

"disregarded" in the context of Wright’s

mitigating evidence, and the sentencing

judge did not limit his remarks to the

emotional response generated by Wright’s

background. In short, the sentencer’s

remarks are so imbued with exclusionary

language as to violate the constitutional

requirements announced in Eddings.

 Judge Easterbrook notes that cases such

as Parker v. Dugger, 498 U.S. 308 (1991),

Wainwright v. Goode, 464 U.S. 78 (1983),

and Rivera v. Sheriff of Cook County, 162

F.3d 486 (7th Cir. 1998), hold that a

reviewing court’s characterization of

what the trial judge found is one of

historical fact. While that proposition

is unassailable, it does not mean that

state courts act correctly in every

instance. Indeed, in Parker, the Supreme

Court reversed a decision that was not an

accurate factual characterization of what

transpired at sentencing. Parker, 498

U.S. at 318. Parker involved a capital

sentencing judge who weighed aggravating

and mitigating factors pursuant to

Florida law. On appeal, the Florida

Supreme Court held that the judge had

erroneously relied upon two aggravating

factors. However, rather than remanding

the case for resentencing, the Florida

Supreme Court held that the absence of

any nonstatutory mitigating factors made

re-weighing unnecessary and affirmed the

death sentence. The Supreme Court of the

United States ultimately reversed,

finding that the "Florida Supreme Court

erred in its characterization of the

trial judge’s findings, and consequently

erred in its review of Parker’s

sentence." Id. at 318. Parker instructs

appellate courts to review the entire

record when evaluating a sentencing

judge’s comments: accurate factual

characterization depends upon "an

examination of the transcript of the

trial and sentencing hearing, and the

sentencing order." Id. at 320. The

Supreme Court ultimately reversed because

the Florida Supreme Court disregarded

evidence that contradicted its factual

finding. "What the Florida Supreme Court

could not do, but what it did, was to

ignore the evidence of mitigating

circumstances in the record and misread
the trial judge’s findings regarding

mitigating circumstances, and affirm the

sentence based on a mischaracterization

of the trial judge’s findings." Id.

 The same is true in the present case,

where the Supreme Court of Illinois did

not address the sentencing judge’s

comments, but instead relied exclusively

on the finding of one mitigating factor

and the fact that the government asked

the court to evaluate all of the evidence

produced at trial. Not considering the

trial court’s comments in this case is

tantamount to not considering the

evidence of nonstatutory mitigating

circumstances in Parker. When viewed in

isolation, the State’s request that the

government consider all of the evidence

produced at trial provides adequate

justification for the conclusion that the

sentencer accounted for Wright’s history.

But the sentencing judge went further in

this case, listing all of the categories

of evidence he would not consider.

Accordingly, even accepting that we are

presented with a question of historical

fact, we believe that the Supreme Court

of Illinois’ finding "is not fairly

supported by the record." Parker, 498

U.S. at 320.

 We also note that the fact/law

distinction in this case is not as

pristine as Judge Easterbrook suggests.

In Parker, the basis for the Supreme

Court’s holding was that the legality of

the defendant’s sentence did not

necessarily follow from "a resolution of

the question of what the trial judge

found." Id. This factor made the

interpretation of the sentencing court’s

remarks a question of fact. Here,

however, the question is whether the

sentencing court failed to consider

Wright’s mitigating evidence, and

resolution of that question in the

affirmative necessarily means that the

sentencing judge violated the

constitutional requirements announced in

Eddings. To say that we cannot evaluate

as a matter of law whether the sentencer

complied with Eddings because the Supreme

Court of Illinois decided as a matter of

historical fact that the sentencer

complied with Eddings engages in a

circularity not required by Parker.

 With due deference to the appropriate

restraints of federalism and the limited
role of this court on habeas review,

there can be no question that the law

clearly requires a sentencing judge to

evaluate the individualized circumstances

of each capital defendant prior to

imposing the death penalty. Because the

sentencing court’s statements reflect the

wholesale exclusion of evidence offered

by Wright in mitigation, we conclude with

constitutionally grounded certainty that

Wright did not receive the individualized

sentence as mandated by Eddings.

 B. Ineffective Assistance of Counsel

 Wright cross-appeals the district

court’s decision to deny relief for

ineffective assistance of trial counsel.

Wright argues that trial counsel was

ineffective for failing to discover,

investigate and introduce 50 pages of

medical records describing Wright’s

mental health history that would have

both corroborated his trial testimony and

supported a GBMI verdict. According to

the district court, the 50 additional

pages contained information that Wright

had I.Q. test scores of 73 to 81, which

classifies him as a person of borderline

mental deficiency. The records further

discuss Wright’s history of taking

prescription psychiatric drugs, his

testimony regarding his traumatic life

before his adoption at age four, and the

fact that his adoptive parents abused

him. Wright alleges that trial counsel’s

performance fell below an objective

standard of reasonableness because there

is no valid strategic reason for failing

to investigate and introduce Wright’s

hospital records. In addition, Wright

challenges trial counsel’s failure to

investigate evidence regarding Wright’s

alleged organic brain damage. With

respect to prejudice, Wright maintains

that there is a reasonable probability

that a jury would have returned a verdict

of guilty but mentally ill had the jury

considered evidence beyond Wright’s selfserving testimony.

 In response, the State argues that this

issue is procedurally defaulted. In his

first petition for post-conviction relief

before the Illinois courts, Wright argued

that counsel was ineffective for failing

to introduce certain records during the

sentencing phase. In a second postconviction petition before the Illinois
courts, Wright challenged trial counsel’s

decision not to pursue a GBMI verdict,

but the Illinois Supreme Court held that

he had waived the claim for failing to

raise it in his first petition. Wright

III, 723 N.E.2d at 239. The district

court ruled that the procedural default

constituted an adequate and independent

ground for relief and refused to address

counsel’s failure to raise a GBMI

defense. Accordingly, the district court

limited its ineffectiveness inquiry "to

the issue of omitted evidence pertaining

to Wright’s mental health." Wright, 149

F. Supp. 2d at 533.

 We assess ineffective assistance of

counsel claims under the standards

enunciated by the Supreme Court

inStrickland v. Washington, 466 U.S. 668

(1984). Under Strickland, a defendant

must establish (1) that counsel’s

performance fell below an objective

standard of reasonableness, and (2) that

the deficient performance resulted in

prejudice to the defendant. Id. at 687.

To demonstrate deficient performance, a

defendant must show that he has been

denied his Sixth Amendment right to a

fair trial as the result of the

incompetence of defense counsel. See,

e.g., Eddmonds v. Peters, 93 F.3d 1307,

1313 (7th Cir. 1996). "This requires

showing that counsel made errors so

serious that counsel was not functioning

as the ’counsel’ guaranteed the defendant

by the Sixth Amendment." Strickland, 466

U.S. at 687. In this context, it is not

reasonable to judge counsel’s performance

based on "hindsight." Instead, we

evaluate counsel’s performance based upon

her perspective at the time of trial. Id.

at 689.

 Before reaching the merits of Wright’s

appeal, we must clarify what ineffective

assistance claims survive. In our view,

the district court correctly held that

trial counsel’s failure to urge a GBMI

verdict was procedurally defaulted. See

Wright, 149 F. Supp. 2d at 533. The

Illinois Supreme Court held that Wright

had failed to raise this issue in his

first petition for post-conviction relief

and that it was therefore procedurally

defaulted. Wright III, 723 N.E.2d at 239.

This is an adequate and independent state

justification, a decision that we must

respect even in the pre-AEDPA context of

this case. See Coleman v. Thompson, 501
U.S. 722, 729 (1991). Accordingly, we

will not reach the merits of whether

trial counsel was ineffective for failing

to raise this issue.

 That leaves trial counsel’s failure to

obtain the 50 pages of additional medical

records. Here, we note that this is not a

case where trial counsel wholly failed to

investigate--or cursorily investigated--

the defendant’s insanity. See Brewer v.

Aiken, 935 F.2d 850 (7th Cir. 1991);

Harris v. Dugger, 874 F.2d 756, 763 (11th

Cir. 1989); Profitt v. Waldron, 831 F.2d

1245, 1248-49 (5th Cir. 1987). Wright’s

trial counsel took reasonable steps to

identify and locate his mental health

records. The record in this case reveals

that trial counsel received an

"extensive" number of psychiatric

documents concerning Wright’s mental

health, and that trial counsel’s access

to the documents he did possess enabled

him to conduct an extensive crossexamination of the State’s psychiatric

expert who testified at trial. See Wright

II, 594 N.E.2d at 280-81. At the time of

trial, counsel had received most of

Wright’s medical records. Because certain

state agencies and mental institutions

neglected to turn over all of the records

does not mean that counsel acted

deficiently. An attorney’s investigation

need not be unlimited in scope or

unerring in execution, but merely

reasonable. Rogers v. Israel, 746 F.2d

1288, 1294 (7th Cir. 1984). We need not

decide whether Wright was prejudiced by

the failure to obtain the additional

records because we hold that counsel’s

performance did not fall below an

objective standard of reasonableness.

Strickland, 466 U.S. at 697.

III. Conclusion

 Because the sentencing judge excluded

from consideration mitigating evidence

about Wright’s traumatic history, we

AFFIRM the district court’s decision

vacating the death penalty. We also AFFIRM

the decision to deny relief based upon

ineffective assistance of counsel. Trial

counsel obtained most of Wright’s medical

records, and these efforts did not fall

below an objective standard of

reasonableness.

FOOTNOTES
/1 The district court addressed seven distinct

claims in its opinion; however, the parties raise

only two on appeal.

/2 For a more thorough recitation of the facts of

Wright’s crime, see People v. Wright, 490 N.E.2d

640, 642-44 (Ill. 1985). We have recounted only

those facts necessary for the disposition of this

appeal. 

/3 Wright initially filed for post-conviction relief

in Illinois State court. That petition was denied

without a hearing, a decision that the Illinois

Supreme Court affirmed on appeal. See People v.

Wright, 594 N.E.2d 276 (1992) ("Wright II"). At

that point, Wright petitioned for a writ of

habeas corpus in federal court. Shortly thereafter, however, Wright filed a second amended postconviction petition in state court and moved the

district court to stay the proceedings pending

exhaustion of state court remedies. The Illinois

trial court eventually dismissed Wright’s second

amended petition. Wright again appealed to the

Illinois Supreme Court, which affirmed the dismissal. See People v. Wright, 723 N.E.2d 230

(Ill. 1999) ("Wright III").

/4 It is true that some sentencing judges might deem

Wright’s traumatic background an aggravating--as

opposed to a mitigating--circumstance. (Dissent,

slip op. at 20-25) However, notwithstanding Judge

Easterbrook’s skepticism, the individualized

assessments necessary in capital sentencing

proceedings required the sentencer to take into

account all of Wright’s evidence, a requirement

not met in this case. With due respect to Judge

Easterbrook’s characterization, not considering

evidence--such as Wright’s history, the sympathy

generated from that history, who the victim was,

and certain statements made to the media--is not

the same as considering but affording little

weight to the mitigating effects of that evidence.

/5 Contrary to the dissent’s assertion, we do not

suggest that the evidence presented by Wright was

necessarily mitigating, or that the sentencer was

required to afford it mitigating weight. Rather,

we find that it was constitutional error for the

sentencing court affirmatively to refuse to

consider a category of potentially mitigating

evidence offered by the capital defendant. This

case does not present the question of how the

sentencing court interpreted evidence offered by

Wright. Instead, it concerns the sentencing

court’s decision not to examine such evidence at

all.
 Easterbrook, Circuit Judge, dissenting in part. 

Patrick Wright had a troubled childhood and has

led a wretched life. Since the age of 15 Wright

has spent most of his days in custody and wreaked

mayhem when free. In sentencing Wright to death

for home invasion, robbery, sexual assault, and

murder, the state judge--acting as trier of fact

after Wright waived his right to have his fate

determined by a jury--admitted all of the evidence Wright offered in mitigation and observed:

"I don’t think any reasonable person who has

heard all of the evidence in this case can feel

anything but sympathy for the pathetic creature,

Patrick Wright". But the judge added that he

would not allow sympathy to affect his sentence.

 Wright entered the Specht home intending to

steal what he could and kill anyone who got in

his way. He slit Connie Specht’s throat, in her

mother Carol’s presence, after trying but failing

to rape both the girl and the woman; he stabbed

Carol to death. Connie survived and called the

police. Wright confessed; that plus physical

evidence and Connie’s account leave no doubt of

his guilt. The judge found that aggravating

circumstances far outweighed any mitigating

factors (particularly the judge’s conclusion that

Wright acted "under the influence of [a shoe

fetish, which amounted to] extreme mental or

emotional disturbance"). My colleagues hold that

by declining to treat Wright’s upbringing as an

additional factor in mitigation, independent of

its effect on his mental state, the judge violated the Constitution. I do not agree with this

conclusion. There is a big difference between a

legal rule forbidding a judge to give mitigating

weight to some factor and a legal rule compelling

a judge to give mitigating weight to that factor.

Eddings v. Oklahoma, 455 U.S. 104 (1982), and

Lockett v. Ohio, 438 U.S. 586 (1978), condemn the

former but do not require the latter. They hold

that "the sentencer in capital cases must be

permitted to consider any relevant mitigating

factor" (Eddings, 455 U.S. at 112); they do not

hold that the sentencer must deem any particular

factor to be mitigating. Wright’s sentence therefore is lawful, and I dissent from the majority’s

contrary decision--though I join its conclusion

that the judgment of conviction is valid.

 My colleagues start with the fact that the

judge who sentenced Wright said, after summarizing the evidence (and making the comments I have

quoted);

[A]ny matters dealing with sympathy, outrage, who

the victim was, all the matters I just mentioned

have no bearing on whether the defendant shall

receive the death penalty. And again, I note for

the record that I have cited them so the record
is clear that I have rejected them, and I have

disregarded them in making my decision.

Then they compare this with the "strikingly

similar" statement held in Eddings to demonstrate

a violation of the Constitution (slip op. 10):

Nor can the Court in following the law, in my

opinion, consider the fact of this young man’s

violent background.

The judge in Wright’s case "disregarded" his

childhood; the judge in Eddings’s case declined

to "consider" it; these come to the same thing,

my colleagues hold. But they are the same thing

only if they reflect the same understanding of

the judge’s discretion--which they do not. The

judge in Eddings thought that the law forbade him

to give weight to the defendant’s troubled childhood. This is the import of "[n]or can the Court

in following the law" give weight to that factor

(455 U.S. at 109, emphasis in original). As the

Justices remarked: "From this statement it is

clear that the trial judge did not evaluate the

evidence in mitigation and find it wanting as a

matter of fact; rather he found that as a matter

of law he was unable even to consider the evidence." Id. at 113. Eddings added that the

state’s "Court of Criminal Appeals took the same

approach. It found that the evidence in mitigation was not relevant because it did not tend to

provide a legal excuse from criminal responsibility." Ibid. That view conflicted with the constitutional principle that a "sentencer [may] not be

precluded from considering, as a mitigating

factor, any aspect of the defendant’s character

or record . . . that the defendant proffers as a

basis for a sentence less than death." Lockett,

438 U.S. at 604 (plurality opinion; emphasis in

original), quoted with approval in Eddings, 455

U.S. at 110.

 Lockett and Eddings hold that whoever wields

the power to impose capital punishment also must

have unfettered discretion to dispense mercy. To

say that there is discretion is to say that the

sentencer may be unmoved--even may treat a

wretched childhood as a factor in aggravation because it implies that the defendant is inured to

violence and thus more likely to be incorrigible.

Nothing in Eddings (or any other decision) compels the sentencer to give favorable weight to a

circumstance proffered in mitigation. Burger v.

Kemp, 483 U.S. 776 (1987), illustrates this

point. Burgeraccused his lawyer of ineffective

assistance for failing to present evidence of his

unhappy childhood and abusive family. The Court

held that this omission did not violate the

Constitution in light of the risk that the sentencer would deem the background damning: evi-
dence showing that a person had a rough past and

fell in with a bad crowd often implies future

dangerousness. Id. at 793-94.

 We have elaborated on this in a series of

decisions that, like Burger, the majority disregards. Stewart v. Gramley, 74 F.3d 132 (7th Cir.

1996), is the most thorough and worth an extended

quotation:

We are mindful of [the argument] that anything

which serves to amplify the personal history of

the defendant and by doing so furnishes clues to

the causality of the crime for which he has been

sentenced to death makes such a sentence less

likely to be imposed. Causality is mitigation,

the lawyer argued. Tout comprendre c’est tout

pardonner. It is not an absurd argument. It

exploits the tension between belief in determinism and belief in free will. If the defendant’s

crime can be seen as the effect of a chain of

causes for which the defendant cannot be thought

responsible--his genes, his upbringing, his

character as shaped by both, accidents of circumstance, and so forth--then a judge or jury is

less likely to think it appropriate that he

should receive a punishment designed to express

society’s condemnation of an evil person. We

consider a rattlesnake dangerous but not evil.

Maybe if we learned enough about Walter Stewart

we would consider him a person who had no more

control over his actions than a rattlesnake has

over its actions.

But not everyone who believes that human actions

are as much the consequences of causal factors as

anything else in nature denies that man is "free"

to refrain from "voluntary" acts such as murder

and is therefore blameworthy if he does not.

"Compatibilists" since Hume have argued that

human action is both caused and, for purposes of

ascribing moral and legal responsibility, free.

We cannot resolve a philosophical debate. And

need not. It is enough for our purposes that

capital punishment is not premised on--indeed is

inconsistent with--the view that the only reason

we think that people act "voluntarily" is that we

have not studied the antecedents of their actions

carefully, and that the purpose of a death-penalty hearing is to investigate the defendant’s

history in sufficient depth to dispel the illusion that he was free not to commit the crimes

for which he is being condemned. For then the

sentence of death would be the proof that the

lawyers had not done their job. And since it

obviously is not the theory of capital punishment

that murderers are compelled to murder by their

past and therefore should not be punished, it

cannot be right that anything brought out at a

death-penalty hearing is certain or even likely
to help the defendant to save his life. What is

brought out that will help him is what goes to

show that he is not as "bad" a person as one

might have thought from the evidence in the guilt

phase of the proceeding. What is brought out that

will hurt him is what goes to show that he is,

indeed, as bad a person, or worse, than one might

have thought from just the evidence concerning

the crime.

At the sentencing hearing members of Stewart’s

family and his former supervisor at work testified that he had been abandoned by his mother

when he was an infant (he does not know who his

father was) and had been brought up by his

grandparents in Michigan. His grandmother died

when he was 15. He had moved to Chicago with his

grandfather a few years earlier. He was friendly,

worked some and got along with his coworkers, and

attended church regularly. Ten years after moving

to Chicago he held up the jewelry store. Shortly

before that his grandfather had died and Stewart

had been distraught. In the closing argument at

the sentencing hearing his lawyer did not mention

Stewart’s personal history although he had

brought it out at the hearing through the testimony that we have just summarized.

The fruits of the investigation by Stewart’s

current lawyers are summarized in a report by a

"mitigation specialist" backed up by affidavits.

According to the report Stewart was born at home

without the assistance of a doctor and fell on

the floor on his head when he emerged from his

mother’s body. His mother was 19 years old and

gave Stewart to her parents when he was six

months old. She does not know the name of his

father. She eventually moved in with her parents,

so that she was living in the same house with

Stewart, but she did not treat him as her son and

displayed no affection for him. When Stewart was

12 his grandfather, whom he doted on, had a

mental breakdown. Stewart was a hyperactive

child, did badly in school, and dropped outafter

the ninth grade. Coming from rural Michigan

Stewart was not used to the guntoting ways of his

Chicago age-mates and imitated their behavior,

which included carrying and using guns. At age 13

he fell under the influence of his cousin Geraldine, "a hustler who got her money through

swindling people." Fagan-like, Geraldine used

Stewart "as her apprentice and bodyguard." The

affidavit of one of Stewart’s sisters states that

"Geraldine is the rotten egg of the family."

Stewart "was enthralled by Geraldine’s lifestyle," and "turned increasingly to crime, primarily robberies." He began using drugs, and for

a time was a heroin addict. Once, while under the

influence of heroin (which, the "mitigation

specialist" pointed out, can injure the brain),
Stewart "beat Wanza[another one of his sisters]

very badly and the police had to be called."

Much of this narrative is irrelevant, such as the

circumstances of Stewart’s birth, the fact that

his grandfather had a mental breakdown, and the

heroin addiction. The purpose of these details is

to insinuate that Stewart may have brain damage,

but of this there is absolutely no evidence . .

. . As for his falling among evil companions, it

is obvious that one does not become a teenage

robber without being initiated into criminal

activity by older hands, not uncommonly a relative. As for drug abuse, the report does not

suggest and there is no evidence that Stewart

committed the robbery and murders while under the

influence of any drug, or, as we have already

noted, that he has any organic brain damage. That

he comes from a broken home and was brought up in

a poor, rough neighborhood of Chicago was known

at the sentencing hearing . . . . The report of

the mitigation specialist adds colorful details

possibly relevant under a tout comprendre defense

if one existed, but not calculated to make a

judge or jury think Stewart less deserving of the

death penalty.

The mitigation specialist’s reference to

Stewart’s having embarked on a criminal career

consisting "primarily of robberies" after he met

cousin Geraldine when he was 13 is highly relevant to appraising the likely impact of current

counsel’s thorough investigation on a sentencing

judge. The criminal record that was put before

the judge understated, we now know as a result of

the investigation, Stewart’s actual criminal

history. Evidently the nine crimes of which he

had been convicted (or sentenced to supervision)

were only the tip of the iceberg. He had been a

career criminal from the age of 13. This was, it

appears, when he began to "use guns." The implication is that when he started on the robbery

trail he used guns in his robberies, and recall

that one of his convictions was for armed robbery--committed when he was only 14. The murders

in the jewelry store were the predictable culmination of his criminal career. He was by then a

hardened, dangerous, and seemingly inveterate

criminal.

74 F.3d at 136-37. Recently we have made the same

point succinctly:

All that Britz’s meticulously researched personal

history shows, as in the other cases we have

cited, is that he led a disordered life culminating in the murder for which he has been sentenced

to death. People with his background of antisocial behavior are more likely to commit murders

than other people, but this does not make them
attractive candidates for lenity; rather, it

underscores their dangerousness.

Britz v. Cowan, 192 F.3d 1101, 1104 (7th Cir.

1999). A judge who shared this perspective would

have admitted the evidence of Wright’s background, expressed compassion for him as a victim

of others’ wrongs, given mitigating weight to any

mental limitations caused by whatever abuse he

had endured, and finally declared the offender’s

background otherwise not a reason to reduce his

punishment. That is exactly what this sentencing

judge did do! So where is the constitutional

flaw? Is it that a state judge is forbidden to go

straight to the bottom line, without articulating

the intermediate steps laid out in Stewart? Or

perhaps there is a need for magic words, as the

majority implies in stating that a judge must

declare something like "I have taken X into

account but given it no weight"? Why there is a

constitutional difference between "I have rejected X" (which this judge said) and "I have given

X no weight," my colleagues do not explain.

Anyway, an obligation to state affirmatively that

some circumstance has been "taken into account"

cannot be found in Eddings (the majority cites no

source at all for this directive, which appears

at slip op. 9 n.4), and as a new rule it may not

be applied in a collateral attack. See Teague v.

Lane, 489 U.S. 288 (1989). My colleagues must

think their approach a logical extension of

Eddings, but Teague puts extensions (logical and

otherwise) off limits.

 Let us return, then, to the rule stated by the

Supreme Court in Eddings: that no state may

forbid a capital sentencer to consider any ground

advanced in mitigation. Because the judge’s

explanation was curt, it is impossible to exclude

the possibility that he sought to convey the same

message as the judge in Eddings. Yet if this is

what he meant, his expression was inept; the key

phrase from Eddings ("[n]or can the Court in

following the law . . . consider" certain evidence) is missing and not replaced by an equivalent. One would expect a judge to be able to

announce a conclusion that the law (as he understood it) disabled him from taking some factor

into account. Yet Illinois law was (and is) clear

that a troubled youth may be considered in mitigation, see People v. Lewis, 88 Ill. 2d 129, 144,

430 N.E.2d 1346, 1352 (1981), so it is not

surprising that the judge did not mention any

legal prohibition. To read this judge’s brief

oral statements as foreclosing on legal grounds

all possibility that a person’s childhood could

mitigate his punishment is to accuse him of

failing to know and follow state law--which not

only would be inappropriate (a presumption of

irregularity?) but also is not the reading given
to the judge’s remarks by the Supreme Court of

Illinois, which found no violation of the state’s

consider-everything norm. People v. Wright, 111

Ill. 2d 128, 166-68, 490 N.E.2d 640, 656 (1985).

(The state’s highest court considered and sustained the conviction and sentence twice more on

collateral review. See People v. Wright, 149 Ill.

2d 36, 594 N.E.2d 276 (1992); People v. Wright,

189 Ill. 2d 1, 723 N.E.2d 230 (1999). Wright did

not renew in either of those proceedings any

contest to the interpretation given in 1985 to

the sentencing judge’s remarks.)

 The most one can say is that the statements

were ambiguous--as oral expressions so often

are--because they did not explicitly draw a distinction between legal rules and case-specific application. Did the judge mean that Wright’s childhood may not be considered (a legal error) or

only that Wright’s childhood will not be considered (a factual conclusion that the evidence did

not justify mercy)? The meaning of an ambiguous

pronouncement is a question of fact, not of law.

Parker v. Dugger, 498 U.S. 308, 320 (1991);

Wainwright v. Goode, 464 U.S. 78, 83-85 (1983);

Rivera v. Sheriff of Cook County, 162 F.3d 486

(7th Cir. 1998). Because meaning is a fact, the

state appellate court’s resolution controls

unless not fairly supported by the record. This

principle--a holding of Parker, Goode, and Rivera

alike--governs pre-aedpa cases under the old 28

U.S.C. (1994 ed.) sec.2254(d)(8) and newer cases

under the current sec.2254(e)(1). The majority’s

opinion seems to rest on the view that, because

the state judge’s words are in black and white on

paper, we can decide their meaning as readily as

the state’s highest court. The view that findings

based on documents may be freely reviewed by

appellate tribunals was ringingly rejected in

Anderson v. Bessemer City, 470 U.S. 564, 573-75

(1985), with respect to the relations between

trial and appellate judges in a unitary judicial

system; it is even less persuasive when applied

to relations between the state judicial system

and the federal.

 Reading the sentencing judge’s statement as a

finding that he was not swayed by Wright’s background, as opposed to a declaration that he was

legally forbidden to consider it, is fairly

supported by the record; it is, indeed, the most

natural reading. The judge did not imply that he

thought himself blocked by a rule of law from

dispensing mercy that he deemed warranted. Unless

the sentencing judge thought the law an obstacle

to acting on mitigating evidence, there is no

problem under Eddings. Because the judge did not

declare that the law stopped him from reducing

Wright’s sentence, the Supreme Court of Illinois’

resolution of the ambiguity is supported by the
record, and thus conclusive in this collateral

attack. My colleagues say in response that the

court’s "holding [does] not withstand scrutiny"

(slip op. 8). To call the Supreme Court of

Illinois’ conclusion a "holding" is to call it a

proposition of law, which in pre-aedpa cases we

review without deference. It is not a "holding,"

however; it is a finding of fact. The state judge

gave thought to (and believed himself legally

entitled to reduce a sentence because of)

Wright’s childhood, or he did not; the Supreme

Court of Illinois concluded that he had done so

(this is the point of its statement that the

judge "considered all potential mitigating facts

in the record", 111 Ill. 2d at 168, 490 N.E.2d at

656).

 Characterizations of what happened are facts,

even when they are entangled with legal issues

and determine the outcome of the litigation. See,

e.g., Pullman-Standard v. Swint, 456 U.S. 273,

288 (1982) (whether particular conduct is "discrimination" is a question of fact); Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709

(1986) (whether a worker is a "seaman" is a

question of fact). See also Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 399-405 (1990)

(characterizations under fact-dependent legal

standards, such as whether a suit is frivolous,

are treated as facts and thus subject to deferential appellate review). What the state judge

thought about the extent of his discretion is a

proposition about the state of the world, not

about the state of the law. That’s the point of

Baron Bramwell’s famous observation that "[t]he

state of a man’s mind is just as much a fact as

the state of his digestion." Edgington v. Fitzmaurice, 29 Ch. Div. 459, 483 (1885). The Supreme

Court of Illinois told us what we need to know

about the state of the sentencing judge’s mind.

See also Banks v. Hanks, 41 F.3d 1197 (7th Cir.

1994).

 Wright tries to get mileage from the context of

the sentencing judge’s declaration: "any matters

dealing with sympathy, outrage, who the victim

was, all the matters I just mentioned have no

bearing on whether the defendant shall receive

the death penalty." To lump "sympathy" with

"outrage" is to imply that the same rule applies

to both, and as "outrage" should not be considered, the sentencing judge must have thought that

"sympathy" should not be considered either. That

is another possible reading--one my colleagues

embrace, slip op. 11-12--but not one that the

state courts were compelled to adopt. The statement "X, Y, and Z have no bearing on whether

Wright shall be sentenced to death" could mean

"X, Y, and Z have no bearing on whether Wright

shall be sentenced to death, for one legal reason
applicable to all three grounds." Or it could

mean "X, Y, and Z have no bearing on whether

Wright shall be sentenced to death, because none

of them makes any difference to me as a matter of

fact." The Supreme Court of Illinois could complete the sentence either way--and it chose the

latter way, with considerable logical support,

for reasons I have covered. My colleagues demand

"constitutionally grounded certainty that Wright

[received] the individualized sentence . . .

mandated by Eddings" (slip op. 14, emphasis

added), but no rule of law calls for "certainty".

Such a demand contradicts Parker and Goode (a

state court’s findings of fact matter only when

there is un-certainty!) and transgresses Teague

as well (the majority does not cite any pre-1985

case, indeed any case at all, for its insistence

on "certainty"). The idea that a record’s silence

on some important matter, and consequent lack of

"certainty," requires a federal court to annul a

state court’s judgment finds no support in the

Supreme Court’s cases, and many hold the contrary--most recently, Mickens v. Taylor, 122 S.

Ct. 1237 (2002) (silence about the effect of

counsel’s conflict of interest, as a result of

judge’s failure to inquire, does not lead to

relief even in a capital case).

 Giving an ambiguous statement a meaning that

renders it unconstitutional (and a violation of

state law to boot) disrespects the state judge’s

legal skills and denigrates the role of the state

judiciary in resolving disputed issues of fact.

My colleagues treat a state judge imposing sentence as if he were an administrative law judge

in a Social Security disability case, obliged to

use prescribed verbal formulas and required to

tie up all loose ends on pain of remand, and they

disdain the decision of the state’s highest

court. That is not the right relation between the

state and federal judiciaries. A state judge is

not an alj, and it is a state’s appellate judiciary rather than a federal court on collateral

review that untangles ambiguities attending oral

expositions. Nor is an insistence that only

"certainty" suffices the right relation between

a court of appeals and the Supreme Court of the

United States.

 Finality and expedition are important in every

criminal case. The meaning of this statement was

resolved in 1985. Words offer only a cloudy

window into the sentencing judge’s thoughts, so

reasonable people could disagree about their

import; the Justices of the Supreme Court of

Illinois did disagree in 1985, dividing five to

two about this subject. Seventeen years later two

federal appellate judges sign on with the dissenters. That delay does more to show the wisdom

of the rule treating these matters as factual
(which allows the state’s decision to stand) than

to justify throwing the state-court decision out

the window and treating the issue as res nova. If

matters had been resolved differently in 1985,

all doubt could have been resolved, likely just

by asking the sentencing judge what he had meant

by his statements. Now it is too late--and delay

is a powerful reason to treat this subject as one

of fact, in order to bring disputes such as this

to timely closure.

 No resentencing 20 years after the fact can be

as good as the one now upset: human memory fades,

so the accuracy of sentencing degrades. New

errors are bound to occur, mistakes that likely

will be more substantial than the ambiguity that

concerns my colleagues. Yet no substantial federal question compels a new proceeding. Lockett and

Eddings settle the major legal question; only

implementation remains. Nonetheless, by holding

that both the passage of time and the findings of

the state’s highest court are irrelevant, my

colleagues create legal problems concerning

federalism, the vitality of the rule stated by

Parker and Goode, the novel demand for "certainty" in adjudication, and the application of

Teague to the majority’s innovations.

 To treat an ambiguity in two off-the-cuff

sentences as spoiling a sentence reviewed and

sustained three times by a state’s highest

court--while giving the findings of that court no

respect--is to abuse the power conferred by 28

U.S.C. sec.2254. Wright is now 59 years old; he

will die of old age before we permit the State of

Illinois to carry out its judgment.